FORCED COVID-19 VACCINATIONS! A better way or the legal way? A perspective on the constitutionality of employers' conduct.

 By Lincoln Majogo

The discovery of covid-19 vaccines has brought a sigh of relief to governments all over the world as this boosts attempts to contain the scourge of the virus. The menacing virus which has ravaged the entire globe since 2019 remains formidable with variants reneging deadlier than earlier strains. Whilst I have and still advocate for people to be vaccinated, l endorse the approach that seeks the informed consent of the employee first before taking drastic measures. This is a personal view premised on the scientific studies that I have carried out concerning the efficacy of vaccines against viruses and variants. I encourage everyone to get vaccinated but again this should be in a manner consistent with constitutionalism.

Recently, social media in Zimbabwe has been flooded with circulars from corporate giants such as TELONE giving ultimatums to their workers to get vaccinated by certain deadlines or face the blade of allowance deductions. The immediate question that arises is the legality and otherwise constitutionality of such conduct. In this essay, I will unpack the constitutional implications of such conduct with an intention to push for a more inclusive and constitutional manner of encouraging vaccinations.

I submit as a matter of fact that the matter of vaccines is sensitive due to the health and privacy implications associated with it. It is a moral crisis. On one hand, there exist the government's efforts to contain the spread of the virus to ensure normalcy and on the other exists the rights of private citizens to choose whether to be vaccinated or not. Such friction isn’t just a Zimbabwean dilemma, it is a global crisis. However, the question of constitutionality still needs to be examined. I will make the argument that employers indeed have a right to mandate compulsory vaccinations of employees; however, I call for a better way of seeking informed consent first from employees.

It will be noted from the onset that the Constitution of Zimbabwe protects the rights of citizens in Zimbabwe. Such rights are a product of a historically painstaking process of forging a social contract between governments and the people. Section 1 of the Constitution Zimbabwe is a unitary, democratic and sovereign republic.

Similarly, the preamble begins with the phrase “We the people of Zimbabwe” which solemnly captures the source of power from which the Document derives. Such rights cannot be abrogated willy-nilly. Their limitation should only be provided under the Constitution of Zimbabwe. For this reason, the new gains of the Constitution namely section 2 embody a supremacy clause. The clause reads

This Constitution is the supreme law of Zimbabwe and any law, practice, custom, or conduct inconsistent with it is invalid to the extent of the inconsistency.

 

 The implication is that any conduct whether by a private, natural, or juristic person that tempers with the rights inside the Constitution should be consistent with the norms of this sacred document.

Further, the provision reads “The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level, and must be fulfilled by them”.

In this regard, companies such as Telone purportedly issuing such circulars are bound to the provisions of the Constitution. This is so because of the principle of the separate legal persona of the corporate personality principle which perceives companies as distinct legal personas from their employees. From this background, we will not dig deep into the provisions of the Constitution that come into play in the present discussion.

 

Do employers have a right to enforce mandatory vaccines?

It is conceded from the onset that employers have a right to provide a safe working environment pursuant to section 6(1) of the Labour Act. This duty is found in both statute and common law. For instance in the case of SAR & H v Cruywagen 1938 CPD 219 at 229 it was held that “an employer has a duty to provide a safe working environment, safe equipment and a safe method of work”. There exist a plethora of precedents justifying employer’s right to mandate employees to be vaccinated.

The most common precedent and locus classicus is the American case of Jacobson v. Massachusetts, 197 U.S. 11 (1905), where the court upheld states' authority to enforce mandatory vaccination laws[1]. The Court held as follows:

"in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand" and that "[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others."

Furthermore, the Court held that mandatory vaccinations are neither arbitrary nor oppressive so long as they do not "go so far beyond what was reasonably required for the safety of the public"[2].

However, this has not always been the case. In some instances, different courts have dissented. For instance in Solomakhin v Ukraine the court held as follows at paragraph 33 of the judgment

“The Court reiterates that according to its case-law, the physical integrity of a person is covered by the concept of “private life” protected by Article 8 of the Convention (see X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91). The Court has emphasized that a person’s bodily integrity concerns the most intimate aspects of one’s private life, and that compulsory medical intervention, even if it is of a minor importance, constitutes an interference with this right (see Y.F. v. Turkey, no. 24209/94, § 33, ECHR 2003‑IX, with further references). Compulsory vaccination – as an involuntary medical treatment – amounts to an interference with the right to respect for one’s private life, which includes a person’s physical and psychological integrity, as guaranteed by Article 8 § 1 (see Salvetti v. Italy (dec.), no. 42197/98, 9 July 2002, and Matter v. Slovakia, no. 31534/96, § 64, 5 July 1999).

This shows that by no means is this a simple issue. Whilst l hold the view that in certain instances, employers may indeed compel employees to be vaccinated, l submit that such reasons have to be cogent and justifiable.

An argument has been marshaled consistently that employers are acting constitutionally within the provisions of section 6(1) of the Labour Act. The justification advanced by such proponents is that unvaccinated persons create a danger to other employees namely the vaccinated ones. This argument has not much scientific backing behind it. It is a well-known scientific fact that vaccinated persons can still spread the virus and worse off, fall to its dangerous whims. The Centre for Disease Control (CDC) has released data showing that vaccinated people with the delta variant carry similar viral loads as those who are unvaccinated.

Whilst it is not disputable that vaccination has substantial odds to reducing waves of deadly virus strains, the justification of creating a safe working environment falls away. In any event, better measures to obtain the informed consent of employees exists for instance inviting experts to speak on the benefits of the vaccine as well as to answer to the genuine concerns that some employees may have over the vaccine.

 Be that as it may, the fact that both vaccinated and unvaccinated persons can spread the virus is enough to do substantial damage to the already limping justification proffered in favour of employers. The environment is safe when people mask up, sanitize and practice social distancing. In other words, these create a safe environment which is why world over persons do not have to provide a vaccine certificate to enter public shops so long as they are practicing social distancing, masking up and, sanitizing. I find that whilst employers have this right, in the present case there is no solid justification for exercising it.

Now we will proceed to deal with the constitutional rights under siege. For the reasons proffered about, I submit that employers should seek the informed consent of employees first before reverting to drastic measures of mandatory vaccinations.

 

Fair labour standards.

Whilst common law remains alive in our law, some of its vestiges of oppression cannot be sustained under the purview of the new Constitution.  It should be noted that such conduct by the employer is tantamount to a unilateral variation of a contract without the employees' consent against the trite principle of sanctity of contracts. Not to say that this is a ripe field to cause employees to resign from work. This conduct will of course be tantamount to constructive dismissal which is an unfair labour practice that violates section 12 of the Labour Act.

In the present case, the act of slashing benefits for the employee falls within the definition of intolerable working conditions. During such trying times such as ours when the virus has eroded account savings of most families, the conduct of employers is tantamount to a death sentence through starvation. The conduct is a creation of intolerable working conditions for the employee.

More sensitively, an argument can be made that such conduct by employers amounts to servitude, which is a violation of section 86 non-derogable rights. The definition proffered by Merriam-Webster of servitude refers to “a condition in which one lacks liberty especially to determine one’s course of action or way of life”. The action of employers indeed causes employees to get the vaccine jabs against their consent. This reflects a hopeless situation where the employees' decisions on such sensitive issues are purely disregarded.

 

 

Right to personal security

Further, the conduct of the employers violate section 52 of the Constitution. Section 52 of the Constitution reads

Every person has the right to bodily and psychological integrity, which includes the right—

c. not to be subjected to medical or scientific experiments, or the extraction or use of their bodily tissue, without their informed consent.

Bodily integrity speaks equally to the right of private persons to choose what to do with their bodies. The effect of the conduct of employers is to violate this right. Employers should seek consent first since the vaccine goes into the body of the private individual. It is common cause that the vaccine is still undergoing various researches. The importance of this right cannot be overemphasized (see Solomakhin v Ukraine supra).

         

Right to privacy & non-discrimination

Moreso, the conduct of employers is a violation of the right to privacy. The constitution of Zimbabwe under section 56 provided for the right to health. Section 57(e) reads that “every person has a right to privacy which included the right not to have their health condition disclosed.” The net effect of the employer's conduct is to force an employee to disclose their health conditions in the form of a vaccine certificate. Patently, this conduct is inconsistent with this section. A person's health condition is within the confines of their sensitive issues which they can't disclose without their consent. Further, it has already been shown that a positive status of covid-19 is associated with a great amount of stigma and discrimination.

 

Freedom of conscience

Moreover, the conduct by employers violates freedom of conscience. Section 60 of the Constitution reads:

60. Every person has the right to freedom of conscience, which includes—

a. freedom of thought, opinion, religion, or belief; and

b. freedom to practice and propagate and give expression to their thought, opinion, religion, or belief, whether in public or in private and whether alone or together with others.

The section is very instructive as to the freedom that every person has regarding personal opinion, belief, and religion. An argument has been marshaled that unvaccinated people are more likely to spread the virus to others thus posing a threat or harm to other persons. This view is motivated by a misunderstanding of the essence of vaccines.

It is an argument from a mistaken belief that vaccinated people cannot spread the virus. This is misplaced and factually not correct. However, the arguments of herd immunity are sustainable. The fact of the matter still is that some persons in some sections of society have religious and personal beliefs that prohibit them from taking the vaccine. The attempt by employers to force employees against their personal beliefs, opinion, and thought to be vaccinated is unconstitutional and runs afoul section 60.

 

 

 

DUE PROCESS.

The above-named rights are not absolute. They can indeed be limited under section 86 of the Constitution. Section 86 on Limitation of rights and freedoms provides:

1. The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

2. The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary, and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom, taking into account all relevant factors, including-- a. the nature of the right or freedom concerned;

b. the purpose of the limitation, in particular, whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning, or the general public interest; c. the nature and extent of the limitation;

 

Firstly subsection 2 succinctly provides a due process test for limiting non-absolute rights. Such a test involves first and foremost law of general application. I take note that one of the laws of general application which is the Public Health Act under section 35 requires persons to be given a choice to make an informed consent in such matters as vaccinations. Moreover, a good legal question that should be asked is whether unvaccinated persons create an unsafe working environment even if they mask up, sanitize and practice social distancing. In my respectful view, this is the crux in the present issue. I remain of the view that whilst employers do have a legal right to compel vaccinations, it cannot be exercised under the current justifications of creating a safe working environment.

 

 

Conclusion.

It should be noted that vaccination is a preferable way to go to curb the virus and its deadly mutations. Zimbabwe has already made strides and inroads in the vaccination program. The efforts have been successful due to campaigns and social awareness on the importance of the vaccine. Such an approach allows persons to practice their informed consent in choosing whether to be vaccinated or not. Whilst employers have a legal right to compel vaccinations, l endorse the better approach which has been the subject of today’s discussion.

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[1] (https://en.wikipedia.org/wiki/Jacobson_v._Massachusetts).

[2] Wiki